Trampling on the First AmendmentDonald Trump and the NFL

LAST week, the National Football League, a powerful organisation overseeing 32 teams worth a combined $80bn, announced that it would bar its employees from engaging in a peaceable and silent protest at work: kneeling during the pre-game national anthem. If they wanted to stay in the locker room “and out of sight during the anthem” that was fine. But “if they are on the field, they must stand”. The NFL also asserted its commitment to “advance social justice” and “promote positive social change” —precisely the goals of the kneeling protests. This is only the first of several contradictions inherent in the policy.

Roger Goodell, the NFL’s commissioner, rued the effect of the protests on the image of players. “It was unfortunate that on-field protests created a false perception among many that thousands of NFL players were unpatriotic,” he said in a statement. “This is not and was never the case.” But if the players weren’t unpatriotic then and still are not, why the major change in between?

In 2016, during the summer before the election of President Donald Trump, Colin Kaepernick was the first not to stand. A quarterback for the San Francisco 49ers, Mr Kaepernick explained that his gesture—sitting and later kneeling—was a protest against the treatment of black Americans and specifically what he called the “murder” of minorities by police. “There are bodies in the street,” he said.

Then Mr Trump was elected. In 2017, in a speech in Alabama, he expressed a desire, referring to a hypothetical kneeling player, to “get that son of a bitch off the field right now.” The president continued to harangue the league and its commissioner in the months that followed, sending dozens of aggrieved tweets that alluded to “respect”, insisted on anthem-standing and badgered for a stricter policy. He even threatened to “Change tax law!” in order to punish the league, which benefits from its tax-exempt status. Mr Kaepernick’s idea spread: during one week in 2017, over 150 players protested.

But Mr Trump got his wish, at least in part. After the new policy was announced, he told an interviewer on Fox that he approved, even suggesting he wished the rule were stronger. “Maybe you shouldn’t be in the country” if you don’t “stand proudly” for the anthem, he said. Upon learning of the rule Mike Pence, the vice-president, simply tweeted “#Winning”, with an emoji of the American flag. It is unclear what exactly he thought he had won.

None of this has anything to do with football, of course. This is a symbolic debate about symbolic gestures toward a symbolic object hung in the stadiums of a symbolic sport. Before 2009, it wasn’t standard practice for players to be on the field for the anthem at all. But it has sharply divided American opinion. A recent poll found that 53% of American adults believed it was “never appropriate” to protest by kneeling during the national anthem. (Among Republicans, that number was 86%; among Democrats, 29%.) Some 42% thought it ever appropriate. For some, standing is an obviously required gesture of respect, a gesture part and parcel with “America First” and making the country great again. For others, this sort of forced patriotism and slavish “respect” smacks of dictatorships rather than democracies and the short shrift given to the real problems being protested smacks of racism.

Whatever the political calculus for Mr Trump or the teams’ owners, this ban may crumble under its own contradictions. Benjamin Sachs, a Harvard Law professor, has argued that the NFL’s new policy is “flatly illegal”. First, he says, the league adopted the policy without bargaining with the NFL Players Association, the players’ union, violating its duty to negotiate in good faith. Second, the policy violates the National Labour Relations Act. Third, it violates the players’ First Amendment rights.

This is perhaps the greatest contradiction: to put your patriotism eggs in a basket that denies what is probably the most famous, and arguably the most important, right guaranteed to Americans by the country’s constitution: the freedom of speech.

No one has a constitutional right to play in the NFL, of course. The league can for the most part make its own rules. The First Amendment applies to censorship by the government and not, Mr Sachs writes, to private employers like a football league. But Mr Trump may have scuttled his own ship. He and his administration have been so heavily involved on Twitter and elsewhere—Mr Pence once walked out of 49ers game, his own silent and contradictory protest—that the constitution probably should speak. It seems likely that the league implemented its policy in response to pressure from Mr Trump. And what is that if not governmental censorship?

Sports have intense candle power, and have as a result been host to closely examined, and occasionally punished, speech. Some has been offensive, some coarse, and some political. In 2014, a number of NBA superstars wore shirts reading “I Can’t Breathe” during pre-game warmups, a reference to the last words of Eric Garner, a black man who died after being placed in a chokehold by a police officer. That league’s commissioner, Adam Silver, decided not to punish the players, expressing his support for the expression of their personal views. He did, however, wish they would wear their required pre-game apparel, provided by Adidas.

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